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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

21 FLRA No. 48
NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES,
LOCAL R14-87
Union
and
DEPARTMENT OF THE ARMY,
KANSAS ARMY NATIONAL GUARD,
TOPEKA, KANSAS
Agency
Case No. 0-NG-874
DECISION AND ORDER ON NEGOTIABILITY ISSUE
I. Statement of the Case
This case is a negotiability appeal filed under section 7105(a)(2)(E)
of the Federal Service Labor-Management Relations Statute (the Statute)
and concerns the negotiability of the following Union Proposal.
Union Proposal
Affected individuals will be returned non-competitively to the
specific location and position from which they were RIF'ed when
the position is vacated and being filled.
The proposal was submitted with regard to a Reduction-in-Force (RIF)
whereby employees were involuntarily reassigned to positions of equal
grade at different duty stations.
II. Positions of the Parties
The Union argues that the proposal constitutes an "appropriate
arrangement" within the meaning of section 7106(b)(3) of the Statute for
employees adversely affected by the exercise of management's rights. It
refers to the decision of the U.S. Court of Appeals for the District of
Columbia Circuit in American Federation of Government Employees, Local
2782 v. Federal Labor Relations Authority, 702 F.2d 1183 (D.C. Cir.
1983), reversing and remanding American Federation of Government
Employees, AFL-CIO, Local 2782 and Department of Commerce, Bureau of the
Census, Washington, D.C., 7 FLRA 91 (1981).
The Agency states that employees covered by the proposal will not be
adversely affected by any reduction in force (RIF) because they will
have been placed into positions of equal grade. The Agency also alleges
that the proposal is nonnegotiable because it interferes with
management's right under section 7106(a)(2)(C) to fill positions by
making selections from any appropriate source. Finally, the Agency
alleges that the proposal violates management's right to assign
employees under section 7106(a)(2)(A) by requiring the reassignment of
employees.
III. Analysis
The Union Proposal would require the Agency to select employees who
were involuntarily reassigned to a position of equal grade without
personal cause for return to their former positions at their former duty
stations if and when such positions are vacant and the Agency makes the
determination to fill them. The basic issue in this case is whether the
proposal constitutes a negotiable appropriate arrangement for employees
adversely affected by the exercise of management's rights under section
7106(b)(3) of the Statute. In National Association of Government
Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4
(1986), the Authority stated that henceforth the Authority will
determine whether a proposal constitutes a negotiable "appropriate
arrangement" under section 7106(b)(3) of the Statute by determining
whether the proposal "excessively interferes" with the exercise of
management's rights. In making such a determination, the Authority will
first examine the record in each case to ascertain as a threshold
question whether a proposal is in fact intended to be an arrangement for
employees adversely affected by management's exercise of its rights. If
the Authority concludes that a proposal is in fact intended as an
arrangement, the Authority will then determine whether the arrangement
is appropriate or whether it is inappropriate because it excessively
interferes.
With regard to the threshold question, the Agency contends that the
employees subject to the proposal are not adversely affected because
they were reassigned to positions of equal grade in a different duty
station. We disagree. Employees subject to a RIF in this case could be
reassigned to any duty station within the State of Kansas. A change in
duty station could require an employee to move or could result in a
significant change of commute. We find that effect to be sufficient to
meet the first requirement under section 7106(b)(3). Therefore, we find
the proposal to be an "arrangement" for employees adversely affected by
the exercise of a management right. According to the Union, the
proposal is clearly intended to mitigate against an involuntary change
in an employee's duty station by requiring selection of the employee for
his or her previous position at his or her prior duty station when it is
vacant and the Agency decides to fill it.
The issue thus becomes whether the proposal excessively interferes
with management's right to select individuals to fill positions or
management's right to assign employees. In this case it is a question
of whether the right afforded employees under the proposal to return to
their previous duty station is outweighed by the effect of the proposal
on those management rights. As detailed above, the only effect of the
proposal is to require management to select for a vacant position the
employee who would still be in that very position if he or she had not
been reassigned in a RIF.
In our decision in Kansas Army National Guard we held that a similar
requirement was not a substantial burden on management when compared to
the detriment suffered by employees demoted in a RIF and the benefit of
repromotion conferred by the proposal in that case. While employees
covered by the proposal in this case have not been demoted, we conclude
that the necessity to relocate as a result of a permanent lateral
involuntary reassignment, perhaps across the State, like a demotion
causes significant negative impact on affected employees. See Union
Statement of Position at 1. With this proposal, as with the one we
considered in Kansas Army National Guard, the burden placed by the
proposal on management's right to select is not so significant as to
outweigh the disruption to an employee's life caused by assignment to a
new duty station and the benefit conferred by the proposal of an
opportunity for the employee to return to his or her former duty
station. For the foregoing reasons, we find that the Union's proposal
does not excessively interfere with management's right, under section
7106(a)(2)(C), to select individuals to fill vacant positions from any
appropriate source.
The selection of employees to fill the positions they previously held
at their former duty stations may entail a reassignment of those
employees to their former duty station and thus may also have an effect
upon management's right to assign employees. However, we find that this
fact would not change the above analysis in that there would not be any
different or additional substantive effect, nor would it add to the
weight of management's practical needs.
IV. Conclusion
Having found that the employees involuntarily reassigned by RIF in
this case were adversely affected by a management decision and that the
Union Proposal does not excessively interfere with management's rights,
under sections 7106(a)(2)(A) and (a)(2)(C) to assign employees and to
fill vacant positions by making selections from any appropriate source,
we hold that the proposal is an appropriate arrangement under section
7106(b)(3) and therefore negotiable.
V. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Agency shall upon request, or as
otherwise agreed to by the parties, bargain concerning the Union
Proposal. /*/
Issued, Washington, D.C., April 21, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(*) In deciding that the proposal is negotiable, the Authority makes
no judgment as to its merits.